United States v. Darwin Leones , 365 F. App'x 866 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10218
Plaintiff - Appellee, D.C. No. 1:08-CR-00495-HG-2
v.
MEMORANDUM *
DARWIN LEONES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, Senior District Judge, Presiding
Submitted February 9, 2010 **
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON and BEA, Circuit Judges.
Darwin Leones appeals his jury conviction for aiding in the use of a firearm
in relation to a drug trafficking offense, a violation of 18 U.S.C. § 924(c)(1), on the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
ground there was insufficient evidence to support that such a drug trafficking
offense occurred.
Leones raised the insufficiency of evidence issue for the first time in his
reply brief. This court “will not ordinarily consider matters on appeal that are not
specifically and distinctly argued in appellant’s opening brief.” Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986); see also F ED. R. A PP. P. 28(a)(5).
Assuming, arguendo, that the issue is not waived, Leones’ argument is
meritless. “The standard of review for determining the sufficiency of the evidence
‘is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Inzunza, 580 F.3d 894, 899
(9th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis
in Jackson). The record is replete with evidence that Leones and his colleagues
acquired, possessed and distributed more than enough methamphetamine to
establish the factual predicate required for Mr. Leones’ conviction. The parties do
not dispute that Leones used a gun in furtherance of this conduct.
AFFIRMED.
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